RAMESH VERMA (D) TR. LRS.versusLAJESH SAXENA (D) BY LRS & ANR.

                            (2016] 11S.C.R.210


A                    RAMESH VERMA (D) TR. LRS.
                                     v.
                 LAJESH SAXENA (D) BY LRS & ANR.
                    (Civil Appeal No. 8665-8668 of2010)
B                          NOVEMBER 24, 2016
             [R. K. AGRAWAL AND R. BANUMATHI, JJ.]
          Hindu Succession Act, 1956:
          Applicability of - Suit for partition of property in dispute by
c   respondent no.1-daughter (since deceased) - Trial court held the
    respondent no.l entitled to 1112'1' share - High Court increased 1he
    share of respondent 110.l to J!Jnl - Plea of appellant-son (since
    deceased) that property left behind by lhe father was governed by
    survivorship under the Hindu Mitakshara coparcenary !all' and not
    Hindu Succession Act, 1956- Held: The share received by appellants
D
    father after a notional partition in 1952 was his separate property
    and no lunger a Mitakshara property - Thus, after the enact111e111 of
    Hindu Succession Act, 1956 devolution of such property of
    appellants father would be only by succession and not by
    survivorship - Madhya Bharat Land Code - s.82.
E         s. 6 and its Proviso - Operation of - Appellants plea that
    High Court was not right in holding that u!s.6, Hindu Succession
    Act, 1956 females have right to seek partition and divide the
    share - Held: s.6 deals with the question of a coparcener dying
    after coming into operation of the Act, without making any
F   testamentary disposition of his undivided share in joint family
    property - The Act does not interfere with special rights of members
    of Mitakshara property except that it ensures to the female heirs, as
    specified in Class I of the Schedule, a share in the i111erest of a
    coparcener in the event of his death - Proviso to s.6 operates when
    the deceased leaves surviving him, a daughter, or any female as
G   specified in Class I of the Schedule - In the case at hand, the
    deceased father left behind a son and 2 female heirs, namely his
    wife and daughter-respondent no.1- Therefore, High Court rightly
    increased the share of the respondent no.1-daughter to 1/Jn'.
          s.23 - Dwelling house - "wholly occupied" - Right offemale
H
                                    210
  RAMESH VERMA (0) TR. LRS. v. LAJESH SAXENA (D) BY                       211
                    LRS & ANR.

heirs to claim partition thereof - Held: The expression dwelling           A
house "'wholly occupied" occurring in s.23 assumes importance -
In !he present case, it is brought in evidence 1/Jat !he house property
was not wholly occupied by the family members and thus High Courl
was right in holding that the house property was also available for
parlition and the respondent no. ]-daughter was entitled to her share.
                                                                           B
      Evidence Act, 1872 - s.68 - Will - Proof of- Held: A will like
any other document is to be proved iii terms of the provisions of
s. 68 of Indian Succession Act and the Evidence Act - Indian
Succession Act, 1925.
      Dismissing the appeals, the Court                                    c
      HELD: 1. The appellant's father received his share in a
notional partition in 1952 after the death of his father (appellant's
grand-father). On such partition the share that had fallen to him
became his separate property. After the Hindu Succession Act,
1956 devolution of such property is only by succession and not             D
by survivorship. The appellant submitted that Section 6 of the
Hindu Succession Act, 1956 is not applicable for the devolution
of property of appellant's father and that the High Court was not
right in holding that under Section 6 females have right to seek
partition and thus dividing the share among female heirs as well.
This submission does not impress. Section 6 deals with the                  E
question of coparcener in a Mitllkslwra coparcener dying after
coming into operation of the Hindu Succession Act, without
making any testamentary disposition of his undivided !.hare in
the joint family property. The initial part of Section 6 stresses
that the Act does not interfere with the special rights of those            F
who are members of Mitaks/1ltrll property except to the extent
that it seeks to ensure the female heirs as specified in Class I of
the Schedule, a share in the interest of a coparcener in the event
of his death, by introducing the concept ofa notional partition
immediately before his death. Proviso to S. 6 operates w!iere the
deceased has left surviving him, a daughter, or any female as               G
specified in Class I of the Schedule. In the case at hand, appellant's
father had left the female heirs namely his wife and daughter-
respondent no.1 and therefore, the devolution of his property,
which he received in a notional partition in 1952 after the death
of his father, was governed by the provisions of Hindu Succession           H
212           SUPREME COURT REPORTS                    PO 161 11 S.C.R.


A     Act, 1956 and not by survivorshi(l, as the same became his
      separate property and no longer a Mit11kslwrt1 property, the High
      Court rightly increased the share of daughter-respondent no.1.
      (Paras 11, 121 [215-F-H; 216-A-C(
         2. A Will like any other document is to be 11roved in terms
B  of the provisions of Section 68 of the Indian Snccession Act and
                                                                           /
   the Evidence Act. The propounder of the Will is called upon to
   show by satisfactory evidence that the Will was signed by the
   testator, that the testator at the relevant time was in a sound and
   disposing state of mind, that he understood the nature and effect
      the disposi~ion and put his signature to the document on his
 c of
   own free will and the document shall not be used as evidence
   until one attesting witness at least has been called for the purpose
   of proving its execution. This is the mandate of Section 68 of the
   Evidence Act and the position 1·emains the same even in a case
   where the opposite party does not specifically deny the execution
 D of the document in the written statement. [Para 13) [216-D-E)
            Savithri v. Kart/~yayani Amma (2007) 11 SCC 621 : 2007
            (11) SCR 404 - relied on.
            3. As rightly submitted by the respondents, the expression
      dwelling house "wholly occupied" occurring in Section 23 of the
 E    Hindu Succession Act assumes importance. When it was brought
      in evidence that the house pro1>erty was not wholly occupied by
      the family members, the High Court was right in holding that the
      house property was also available for partition and the deceased
      respondent no.I-daughter was entitled to l/3'd share. The findings
 F    recorded by the High Court are based upon facts and evidence
      and there is no reason to interfere with the conclusion arrived at
      by the High Court. [Para 19) (218-B-C]
                            Case Law Reference
      2007(1l)SCR 404              relied on               Para 14
 G        CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 8665-
      8662of20I0.                         I

         From the Judgment and Order dated 31.07.1997 of the High Court
   of Judicature, Jabalpur Bench at Gwalior in FA No. 29 of 1991 & FA
   No. 30of1991 & FA No. 31of1991&dated07.12.2007 in WA No. 765
                                                                               /
 H of2007.
 RAMESH VERMA (D) TR. LRS. v. LAJESH SAXENA (D) BY                            213
                   LRS & ANR.

      N. K. Mody, Sr. Adv., Rohan Jain, Adarsh Tripathi, Akshay                A
Shrivastava, M. P. Shorawala, Advs. for the Appellants.
     Sushi I Kumar Jain, Sr. Adv., Dilcep Tandon, Manu Maheshwari,
Abhinav Gupta, Ms. Pratibha Jain, Advs. for the Respondents.
      The Judgment of the Court was delivered by
                                                                               B
      R. BANUMATHI, J. I. These appeals arise out of the common
judgment of the High Court of Madhya Pradesh in First Appeal Nos.29,
30 & 31 of 1991 dated 31.07.1997.
     2. The parties are related as under:-
   "Bhagwan Prasad Das _ _ Smt. Jaydevi                                        c
      (Died in 1952)        (Widow died in 1972)

              I
      Shri Jagan Verma - - - - Prabhavati
       (Died in 1967)       (Widow died in 1984)
                                                                               D

       Ramesh Verma                                       Lajesh Saxena
     (Def. NO. I died on                                    (Plaintiff)
        I 0/ I0/2003)

       I
    Shyam          Raj at        Raj iv      Mcena
                                                                                E

    Kishori        Verma         Verma       Saxena
    Verma
                                                       · Sanjeev Kumar
                                                          (Respondent
                                                             No.5)              F
      3. The deceased first respondent herein/plaintiff had filed the suit
for partition on 26.02.1970 claiming J/8•h of the share in the family
properties. The trial Court by the judgment dated 31.01.1991 passed the
preliminary decree for partition being Civil Original Suit No.71 A/1984
and held that :-
                                                                                G
           °'(i) PlaintiffSmt. Lajesh Saxena is entitled to get l/12'hshare
        in the joint Hindufamily property;
          (ii) Defendant No. I Ramesh Verma is entitled to get l/3'd
        share in the property of Bhagwanprasad and Ifl 2•h share in the
        property of Jagan Verma totalling 5/J 2ih of the whole;
                                                                               H
214            SUPREME COURT REPORTS                           f2016l 11 S.C.R.


A                 (iii) Defendant No.3 Ri\iiv Verma and defendant No.4 Rajat
              Verma are entitled to get jointly 1/1211; share in the property of
              Prabhavati and 1/12 1; share in the property offaydevi i.e. total
                                   1



              Y,, share in the joint Hindu family property."
          4. By holding so, the trial court accepted the execution of the
 B Wills being Exhibit D/2 dated 07.12.1969 executed by Jaydevi in favour
   of Raj iv Verma and Rajat Verma and also Exhibit Oil dated 23.10.1977
   executed by Prabhavati in favour of Raj iv Verma and Rajat Verma.
            S. Being aggrieved by the judgment and decree of the trial Court,
      deceased Ramesh Verma preferred an appeal before the High Court of
c     Madhya Pradesh (FA No.29/1991 ). Sanjeev Kumar, son ofplaintiffLajesh
      Saxena as also the plaintiff-Lajesh Saxena filed appeals before the High
      Court in FA No.30/91 and FA No.31/1991, respectively.
          6. After hearing the parties, the High Court vide its judgment
   dated3 l.07.1997, allowed the appeal FANo.31/91 filed by Lajesh Saxena
 D holding that plaintiff is entitled to IIJ•d share in stead of I/12 11; share in
   the Joint Hindu Property. Consequently, FA No.29/91 and FA No.30/91
   filed by Ramesh Venna and Sanjeev, respectively, were disposed of.
   The High Court held that the execution of the Will Exhibit D/I (dated
   23.10.1977), ExhibitD/2 Will(dated 07.12.1969)and Exhibit D/1/C (dated
   22.05.1984 executed by Prabhavati) were not proved in accordance
 E with Section 68 of the Indian Evidence Act and disbelieved the
   genuineness ofall the three Wills.
             7. Being aggrieved, Ramesh Verma (since deceased) through
      his legal heirs preferred these appeals.·

 F           8. We have heard learned counsel for the parties at considerable
      length.
          9.' Learned Senior Counsel for the appellants submitted that after
   the death of Jagan Venna 1/3'd share of the property devolved upon
   Ramesh Verma and the same will be governed by survivorship under
 G the Hindu Mitakshara coparcenary law and the High Court was not
   right in holding that under Section 6 of the Hindu Succession Act females
   have right to seek partition and dividing the share in property among
   Jaydevi, Prabhavati and his son and daughter, namely, Ramesh Verma
   and Lajesh Saxena. It was further submitted that the High Court has
   not appreciated the findings recorded by the trial Court in accepting the
 H genuineness of the Wills Exhibits 0/1 and D/2 and the High Court erred
  RAMESH VERMA (D) TR. LRS. v. LAJESH SAXENA (D) BY                            215
           LRS & ANR. [R. BANUMATHI, J.]

in disbelieving the genuineness of those two Wills. Learned Senior Counsel      A
has taken us at length through Exhibits D/I and D/2. It was further
submitted that, in any event, if a dwelling house is occupied by the
members of the family, then the right ofany female heir to claim partition
is suspended till the time the male heirs choose to divide their respective
shares in terms of Section 23 of the Hindu Succession Act and the first
                                                                                B
respondent being a married daughter of the house is not entitled to claim
her share and this aspect was not properly appreciated by the High
Court.
       JO. Per contra, learned Senior Counsel appearing for the
respondents has taken us through the judgment of the High Court and
submitted that in the light of the contradictory statements of the attestors    c
and scribes to the Will, the High Court rightly held that the Wills Exhibits
D/J and D/2 were not proved in accordance with Section 68 of the
Indian Evidence Act. It was further submitted that since Jagan Verma
died in the year 1967 i.e. after the enactment of Hindu Succession Act,
the succession of Jagan Verma would be governed by Section 6 of the             D
Hindu Succession Act and the High Court has rightly held that plaintiff-
Lajesh Saxena would be entitled to lf3•d share in the house property.
Taking us through the relevant portion of the judgment of the High Court,
learned Senior Counsel submitted that the High Court has recorded a
clear finding that the house property is not "wholly occupied" by the
family members and hence rightly held that the house property is also           E
partable and that the respondent-plaintiff is entitled to J/Jrd share in the
house property and the judgment of the High Court does not warrant
interference.
       11. On the death of Bhagwan Das in 1952, a notional partition
has taken place and as per Section 82 of Madhya Bharat Land Code, his            F
son Jagan Verma, grandson-Ramesh Verma and wife-Jaydevi are each
entitled to get I/Jrd share in the property of Bhagwan Das. On such
partition when a share has fallen to Jagan Verma, it became his separate
property and no longer a Mitakshara property. After the Hindu
Succession Act, 1956 devolution of Jagan Verma's property ii; only by           G
succession and not by survivorship.
      12. We are not impressed with the submission that Section 6 of
the Hindu Succession Act, 1956 is not applicable for the devolution of
property of Jagan Verma. Section 6 deals with the question of coparcener
in a Mitakshara coparcener dying after coming into operation of the             H
216             SUPREME COURT REPORTS                          [2016] I I S.C.R.



A     Hindu Succession Act, without making any testamentary disposition of
      his undivided share in the joint family property. The initial part of Section
      6 stresses that the Act does not interfere with the special rights of those
      who are members of Mitakshara property except to the extent tilat it
      seeks to ensure the female heirs as specified in Class I of the Schedule,
      a share in the interest of a coparcener in the event of his death, by
B
      introducing the concept of a notional partition immediately before his
      death. Proviso to Section 6 operates where the deceased has left
      surviving him, a daughter, or any female as specified in Class I of the
      Schedule. In the case at hand, Jagan Verma has left the female heirs
      namely his wife Prabhavati and daughter Lajesh Saxena and, therefore,
c     the devolution of the property of Jagan Verma was governed by the
      provisions of Hindu Succession Act and the High Cou1t rightly increased
      the share of Jagan Verma's daughter Lajesh Saxena.
             13. A Will like any other document is to be proved in terms of the
      provisions ofSection 68 of the Indian Succession Act and the Evidence
 D    Act. The propounder of the Will is called upon to show by satisfactory
      evidence that the Will was signed by the testator, that the testator at the
      relevant time was in a sound and disposing state of mind, that he
      understood the nature and effect of the disposition and put his signature
      to the document on his own free wi II and the document shall not be used
      as evidence until one attesting witness at least has been called for the
 E    purpose of proving its execution. This is the mandate of Section 68 of
      the Evidence Act and the position remains the same even in a case
      where the opposite party does not specifically deny the execution 0fthe
      document in the written statement.
             14. In Savithri v. Karthyayani Amma reported as (2007) 11 SCC
 F    621 at page 629, this Court has held as under:-
              '"A Will like any other document is to be proved in terms of
              the provisions of the Succession Act and the Evidence Act.
              The onus of proving the Will is on the propounder. The
              testamentary capacity of the testator must also be
 G            established. Ewcution of the Will by the testator has to be
              proved. At least one a/lesting witness is required to be
              examined for the purp• .i.e of proving the execution of the
              Will. It is required to bi: ~liu1rn that the Will has been signed
              by the testator with his ji-ee will and that at the relevant time
 H            he was in sound disposing state of mind and understood the
  RAMESH VERMA (D) TR. LRS. v. LAJESH SAXENA (D) BY                            217
           LRS & ANR. [R. BANUMATHI, J.]

        nature and effect of the disposition. It is also required to be         A
        established that he has signed the Will in the presence of
        two witnesses who attested his signature in his presence or
        in the presence of each other. Only when there exists
        suspicious circumstances, the onus would be on the
        propounder to explain them to the satisfaction of the Court
                                                                                B
        before it can be accepted as genuine. "
      15. It is not necessal)' for us to delve at length to the facts of the
matter as also the evidence adduced by the parties before the High
Court. Suffice it to note that the execution of the Wills has to be proved.
in accordance with Section 68 of the Indian Evidence Act.
                                                                                c
       16. Insofar as the execution of the first Will dated 07.12.1969 is
concerned, the witnesses Shyam Mohan Bhatnagar and scribe Mahesh
Narayan have stated that the testator Jaydevi executed the Will and
witnesses Shyam Mohan and R.P. Johri have signed. Witness Johri was
the brother-in-law of Ramesh Verma and thus interested witness. Scribe
Mahesh Narayan is known to mother-in-law of Ramesh Verma. After                 D
referring to their evidence, High Court held that execution of the Will
has not been proved. Further, the High Court in its judgment has pointed
out the contradictions in their evidences and recorded the factual finding
that the Will could not have been executed in the manner as alleged by
the witnesses. We do not find any reason to interfere with the factual          E
findings recorded by the High Court.
       17. Likewise, insofar as the findings recorded by the High Court
regarding Will Exhibit D/1-Will dated 23.10.1977, the same was said to
have been notarized by the neighbour of Ramesh Verma, namely,
Bhagwati Prasad Singhal and said to have been attested by Shivaji Rao            F
Tambat. In respect of Will Exhibit D/I also, after refen·ing to the ~vidence
that Ramesh Verma told that there is a Will and hence witnesses and
Prabhavati signed the Will, the High Court has recorded factual finding
that Ramesh has manouvred the Will and the execution of Exhibit D/1
Will is not acceptable. We do not find any reason to interfere with the
factual findings arrived at by the High Court.                                  G
       18. Insofar as the submissions of the learned Senior Counsel
regarding the dwelling house property are concerned, the High Court in
its judgment in paragraphs 17 and 18 has pointed out thata portion of the
house property has been let out. After referring to the evidence of
Ramesh Verma, it has been pointed out by the High Comt that presently           H
218              SUPREME COURT REPORTS                      [2016) II S.C.R.



 A    the bungalow (Kolhi) is now let out for marriage purposes and at the
      time of his giving evidence rent ofRs.400 per day was collected.
              19. As rightly submitted by learned Senior Counsel for the
      respondents the expression dwelling house "wholly occupied" occurring
      in Section 23 of the Hindu Succession Act assumes importance. When
 B    it is brought in evidence that the house property is not wholly occupied
      by the family members and the High Court was right in holding that the
      house property is also available for partition and the deceased plaintiff
      Lajesh Saxena is entitled to I/J'd share. The findihgs recorded 1:-y the
      High Court are based upon facts and evidence and are unimpeachable
      and we do not find any reason to interfere with the conclusion arrived at
 c    by the High Court.
             20. Accordingly, the appeals are liable to be dismissed and they
      are dismissed. Parties are to bear their respective costs.
      Divya l'andcy                                            Appeals dismissed.